By: West S.B. No. 1539
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the regulation of certain facilities, homes, and
1-2 agencies that provide child care and of child-care administrators;
1-3 providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. The heading of Chapter 42, Human Resources Code,
1-6 is amended to read as follows:
1-7 CHAPTER 42. REGULATION OF CERTAIN [CHILD-CARE] FACILITIES,
1-8 HOMES, AND AGENCIES THAT PROVIDE CHILD-CARE SERVICES
1-9 SECTION 2. Section 42.001, Human Resources Code, is amended
1-10 to read as follows:
1-11 Sec. 42.001. PURPOSE. The purpose of this chapter is to
1-12 protect the health, safety, and well-being of the children of the
1-13 state who receive care outside their homes [reside in child-care
1-14 facilities] by establishing statewide minimum standards for their
1-15 safety and protection and by regulating the provision of certain
1-16 child-care services [facilities through a licensing program]. It
1-17 is the policy of the state to ensure the protection of all children
1-18 receiving child-care services [under care in child-care facilities]
1-19 and to encourage and assist in the improvement of child-care
1-20 programs. It is also the intent of the legislature that freedom of
1-21 religion of all citizens is inviolate, and nothing in this chapter
1-22 gives a governmental agency authority to regulate, control,
1-23 supervise, or in any way be involved in the form, manner, or
1-24 content of religious instruction or the curriculum of a school
2-1 sponsored by a religious organization.
2-2 SECTION 3. Section 42.002, Human Resources Code, is amended
2-3 to read as follows:
2-4 Sec. 42.002. DEFINITIONS. In this chapter:
2-5 (1) "Child" means a person under 18 years of age.
2-6 (2) "Division" means the division designated by the
2-7 department to carry out the provisions of this chapter.
2-8 (3) "Child-care facility" means a facility licensed,
2-9 certified, or registered by the department to provide assessment,
2-10 [that provides] care, training, education, custody, treatment, or
2-11 supervision for a child who is not related by blood, marriage, or
2-12 adoption to the owner or operator of the facility, for all or part
2-13 of the 24-hour day, whether or not the facility is operated for
2-14 profit or charges for the services it offers.
2-15 (4) "Child-care institution" means a child-care
2-16 facility that provides care for more than 12 children for 24 hours
2-17 a day, including facilities known as children's homes, halfway
2-18 houses, residential treatment centers [camps], emergency shelters,
2-19 and therapeutic camps [training or correctional schools for
2-20 children].
2-21 (5) "Foster group home" means a child-care facility
2-22 that provides care for 7 to 12 children for 24 hours a day.
2-23 (6) "Foster [family] home" means a child-care facility
2-24 that provides care for not more than six children for 24 hours a
2-25 day.
2-26 (7) "Day-care center" means a child-care facility that
2-27 provides care for more than 12 children under 14 years of age for
3-1 less than 24 hours a day.
3-2 (8) "Group day-care home" means a child-care facility
3-3 that provides care for 7 to 12 children under 14 years of age for
3-4 less than 24 hours a day.
3-5 (9) "Family home" means a home that [regularly]
3-6 provides regular care in the caretaker's own residence for not more
3-7 than six children under 14 years of age, excluding [the caretaker's
3-8 own] children who are related to the caretaker, and that provides
3-9 care after school hours for not more than six additional elementary
3-10 school children, but the total number of children, including
3-11 children who are related to the caretaker [the caretaker's own,]
3-12 does not exceed 12 at any given time. The term does not include a
3-13 home that provides care exclusively for any number of children who
3-14 are related to the caretaker.
3-15 (10) "Agency foster group home" means a facility that
3-16 provides care for seven to 12 children for 24 hours a day, [and] is
3-17 used only by a licensed child-placing agency, and meets department
3-18 standards.
3-19 (11) "Agency foster home" means a facility [private
3-20 home] that provides care for not more than six children for 24
3-21 hours a day, [that] is used only by a licensed child-placing
3-22 agency, and [that] meets department [division] standards.
3-23 (12) "Child-placing agency" means a person, including
3-24 an organization, other than the natural parents or guardian of a
3-25 child who plans for the placement of or places a child in a
3-26 child-care facility [an institution], agency foster home, agency
3-27 foster group home, or adoptive home.
4-1 (13) "Facilities" includes child-care facilities and
4-2 child-placing agencies.
4-3 (14) "State of Texas" or "state" does not include
4-4 political subdivisions of the state.
4-5 (15) "Religious organization" means a church,
4-6 synagogue, or other religious institution whose purpose is to
4-7 support and serve the propagation of truly held religious beliefs.
4-8 (16) "Children who are related to the caretaker" means
4-9 children who are the children, grandchildren, siblings,
4-10 great-grandchildren, nieces, or nephews of the caretaker, whether
4-11 by affinity or consanguinity or as the result of a relationship
4-12 created by court decree.
4-13 (17) "Regular care" means care that is provided at
4-14 least four hours a day, three or more days a week, for more than
4-15 nine consecutive weeks.
4-16 SECTION 4. Subsections (a) and (b), Section 42.021, Human
4-17 Resources Code, are amended to read as follows:
4-18 (a) The department may [shall] designate a division within
4-19 the department to [regulate and license child-care facilities and
4-20 child-placing agencies. The division shall enforce the provisions
4-21 of this chapter and the rules and standards adopted by the
4-22 department under this chapter and shall] carry out [other]
4-23 responsibilities the department may delegate or assign under this
4-24 chapter.
4-25 (b) The executive director of the department shall appoint
4-26 as director of a [the] division designated under Subsection (a) a
4-27 person who meets the qualifications set by the board[:]
5-1 [(1) meets the qualifications required of a child-care
5-2 administrator by Chapter 43;]
5-3 [(2) holds a graduate degree in social science or law
5-4 and has five years' administrative experience in a field related to
5-5 child care; or]
5-6 [(3) has 10 years' experience in a field related to
5-7 child care, at least 5 of which must be administrative].
5-8 SECTION 5. Subsections (d), (e), and (f), Section 42.022,
5-9 Human Resources Code, are amended to read as follows:
5-10 (d) The department [division] shall provide staff necessary
5-11 for the committee.
5-12 (e) The committee shall review rules and minimum standards
5-13 for child-care administrators, child-care facilities, and
5-14 child-placing agencies promulgated by state agencies, and shall
5-15 advise the department, [the division,] the council, and state
5-16 agencies on problems of child-care administrators, child-care
5-17 facilities, and child-placing agencies.
5-18 (f) The committee shall receive and review the annual report
5-19 of the department [division].
5-20 SECTION 6. Subsections (a) and (b), Section 42.023, Human
5-21 Resources Code, are amended to read as follows:
5-22 (a) The executive director shall prepare an annual written
5-23 report regarding the department's [division's] activities under
5-24 this chapter.
5-25 (b) The annual report shall include:
5-26 (1) a report by regions of applications for licensure
5-27 or certification, of provisional licenses issued, denied, or
6-1 revoked, of licenses issued, denied, suspended or revoked, of
6-2 emergency closures and injunctions, and of the compliance of
6-3 state-operated agencies with certification requirements;
6-4 (2) a summary of the amount and kind of in-service
6-5 training and other professional development opportunities provided
6-6 for department [division] staff;
6-7 (3) a summary of training and other professional
6-8 development opportunities offered to facilities' staffs; and
6-9 (4) a report of new administrative procedures, of the
6-10 number of staff and staff changes, and of plans for the coming
6-11 year.
6-12 SECTION 7. Chapter 42, Human Resources Code, is amended by
6-13 amending Subchapters C and D to read as follows:
6-14 SUBCHAPTER C. REGULATION OF CERTAIN [CHILD-CARE] FACILITIES,
6-15 HOMES, AND AGENCIES
6-16 Sec. 42.041. REQUIRED LICENSE. (a) No person may operate a
6-17 child-care facility or child-placing agency without a license
6-18 issued by the department [division].
6-19 (b) This section does not apply to:
6-20 (1) a state-operated facility;
6-21 (2) an agency foster home or agency foster group home;
6-22 (3) a facility that is operated in connection with a
6-23 shopping center, business, religious organization, or establishment
6-24 where children are cared for during short periods while parents or
6-25 persons responsible for the children are attending religious
6-26 services, shopping, or engaging in other activities on or near the
6-27 premises, including but not limited to retreats or classes for
7-1 religious instruction;
7-2 (4) a school or class for religious instruction that
7-3 does not last longer than two weeks and is conducted by a religious
7-4 organization during the summer months;
7-5 (5) a youth camp licensed by the Texas Department of
7-6 Health;
7-7 (6) a facility [hospital] licensed, operated,
7-8 certified, or registered by another state agency [the Texas
7-9 Department of Mental Health and Mental Retardation or the Texas
7-10 Department of Health];
7-11 (7) an educational facility accredited by the Texas
7-12 [Central] Education Agency or the Southern Association of Colleges
7-13 and Schools that operates primarily for educational purposes in
7-14 grades kindergarten and above;
7-15 (8) an educational facility that operates solely for
7-16 educational purposes in grades kindergarten through at least grade
7-17 two, that does not provide custodial care for more than one hour
7-18 during the hours before or after the customary school day, and that
7-19 is a member of an organization that promulgates, publishes, and
7-20 requires compliance with health, safety, fire, and sanitation
7-21 standards equal to standards required by state, municipal, and
7-22 county codes;
7-23 (9) a kindergarten or preschool educational program
7-24 that is operated as part of a public school or a private school
7-25 accredited by the Texas [Central] Education Agency, that offers
7-26 educational programs through grade six, and that does not provide
7-27 custodial care during the hours before or after the customary
8-1 school day;
8-2 (10) a family home, whether registered as required by
8-3 Section 42.052 or not;
8-4 (11) an educational facility that is integral to and
8-5 inseparable from its sponsoring religious organization or an
8-6 educational facility both of which do not provide custodial care
8-7 for more than two hours maximum per day, and that offers
8-8 educational programs for children age five and above in one or more
8-9 of the following: kindergarten through at least grade three,
8-10 elementary, or secondary grades;
8-11 (12) [an agency group home;]
8-12 [(13)] an emergency shelter facility providing shelter
8-13 to minor mothers who are the sole support of their natural children
8-14 under Section 32.201 [35.05], Family Code, unless the facility
8-15 would otherwise require a license as a child-care facility under
8-16 this section; [or]
8-17 (13) [(14)] a juvenile detention facility certified
8-18 under Section 51.12, Family Code, or Section 141.042(d), [or] a
8-19 juvenile facility providing services solely for the Texas Youth
8-20 Commission, or any other correctional facility for children
8-21 operated or regulated by another state agency or by a political
8-22 subdivision of the state;[.]
8-23 (14) an elementary-age (ages 5-13) recreation program
8-24 operated by a municipality provided the governing body of the
8-25 municipality annually adopts standards of care by ordinance after a
8-26 public hearing for such programs, that such standards are provided
8-27 to the parents of each program participant, and that the ordinances
9-1 shall include, at a minimum, staffing ratios, minimum staff
9-2 qualifications, minimum facility, health, and safety standards, and
9-3 mechanisms for monitoring and enforcing the adopted local
9-4 standards; and further provided that parents be informed that the
9-5 program is not licensed by the state and the program may not be
9-6 advertised as a child-care facility; or
9-7 (15) an annual youth camp held in a municipality with
9-8 a population of more than 1.5 million that operates for not more
9-9 than three months and that has been operated for at least 10 years
9-10 by a nonprofit organization that provides care for the homeless.
9-11 (c) A single license that lists addresses and the
9-12 appropriate facilities may be issued to a child-care institution
9-13 that operates noncontiguous facilities that are nearby and that are
9-14 demonstrably a single operation as indicated by patterns of
9-15 staffing, finance, administrative supervision, and programs.
9-16 (d) [A person operating or desiring to operate a child-care
9-17 facility that is exempt from the provisions of Subsection (a) of
9-18 this section may apply to the division for a license as provided in
9-19 Section 42.046 of this code. The division may not deny an exempt
9-20 facility a license on the ground that it is exempt from Subsection
9-21 (a) of this section.] A facility exempt from the provisions of
9-22 Subsection (a) of this section that desires to receive or
9-23 participate in federal or state funding shall be required to comply
9-24 with all other provisions of this chapter [Act] and with all
9-25 regulations promulgated under this chapter [thereunder].
9-26 (e) The exemptions provided by Subsection (b) of this
9-27 section do not affect the authority of local, regional, or state
10-1 health department officials, the state fire marshal, or local fire
10-2 prevention officials to inspect child-care facilities.
10-3 Sec. 42.042. RULES AND STANDARDS. (a) The department shall
10-4 make rules to carry out the provisions of this chapter.
10-5 (b) The department shall conduct a comprehensive review of
10-6 all rules and standards at least every six years. For purposes of
10-7 this subsection, the six-year period begins on the latest of the
10-8 date of:
10-9 (1) the conclusion of the review of the rules and
10-10 standards;
10-11 (2) a decision by the department not to revise the
10-12 rules and standards;
10-13 (3) a decision by the board not to revise the rules
10-14 and standards; or
10-15 (4) board action adopting new standards.
10-16 (c) The department shall provide a standard procedure for
10-17 receiving and recording complaints [and a standard form for
10-18 recording complaints].
10-19 (d) The department shall provide standard forms for
10-20 applications and inspection reports.
10-21 (e) The department shall promulgate minimum standards that
10-22 apply to licensed child-care facilities and to registered family
10-23 homes covered by this chapter and that will:
10-24 (1) promote the health, safety, and welfare of
10-25 children attending a facility or registered family home;
10-26 (2) promote safe, comfortable, and healthy physical
10-27 facilities and registered family homes for children;
11-1 (3) ensure adequate supervision of children by
11-2 capable, qualified, and healthy personnel;
11-3 (4) ensure adequate and healthy food service where
11-4 food service is offered;
11-5 (5) prohibit racial discrimination by child-care
11-6 facilities and registered family homes; [and]
11-7 (6) require procedures for parental and guardian
11-8 consultation in the formulation of children's educational and
11-9 therapeutic programs; and
11-10 (7) prevent the breakdown of foster care and adoptive
11-11 placement.
11-12 (f) In promulgating minimum standards for the provision of
11-13 child-care services [facilities], the department shall recognize
11-14 the various categories of services [facilities], including services
11-15 for [facilities offering] specialized care, [and] the various
11-16 categories of children and their particular needs, and the
11-17 differences in the organization and operation of child-care
11-18 facilities and institutions. Standards for child-care institutions
11-19 must require an intake study before a child is placed in an
11-20 institution. The intake study may be conducted at a community
11-21 mental health and mental retardation center.
11-22 (g) In promulgating minimum standards the department may
11-23 recognize and treat differently the types of services provided by
11-24 the following:
11-25 (1) family homes;
11-26 (2) child-care facilities, including child-care[:
11-27 child-caring] institutions, foster group homes, foster homes, group
12-1 day-care homes, and day-care centers;
12-2 (3) child-placing agencies;
12-3 (4) [, group day-care homes, family day homes,
12-4 registered family homes, and] agency foster homes; and
12-5 (5) agency foster group homes.
12-6 (h) The department shall promulgate minimum standards for
12-7 child-placing agencies.
12-8 (i) Before adopting minimum standards, the department
12-9 [division] shall present the proposed standards to the State
12-10 Advisory Committee on Child-Care Facilities for review and comment,
12-11 and shall send a copy of the proposed standards to each licensee
12-12 covered by the proposed standards at least 60 days before the
12-13 standards take effect to provide the licensee an opportunity to
12-14 review and to send written suggestions to the committee [council]
12-15 and the department.
12-16 (j) The department may waive compliance with a minimum
12-17 standard in a specific instance if it determines that the economic
12-18 impact of compliance is sufficiently great to make compliance
12-19 impractical.
12-20 (k) The department may not regulate or attempt to regulate
12-21 or control the content or method of any instruction or curriculum
12-22 of a school sponsored by a religious organization.
12-23 (l) In promulgating [The department shall adopt] minimum
12-24 standards for the regulation of [regulating] family homes that
12-25 register with the department, the department [division. The rules]
12-26 must address the minimum qualifications, education, and training
12-27 required of a person who operates a family home registered with the
13-1 department [division].
13-2 (m) [The department shall ensure that each child-care
13-3 facility that provides care for less than 24 hours a day complies
13-4 with the appropriate minimum standards relating to staff-child
13-5 ratios, group sizes, and square footage as those minimum standards
13-6 existed on September 1, 1985. The department may not enforce new
13-7 standards in relation to staff-child ratios, group sizes, or square
13-8 footage that are more stringent than the 1985 standards for those
13-9 facilities. This subsection expires September 1, 1997.]
13-10 [(n)] In determining minimum standards for nonresidential
13-11 child-care facilities that provide care for less than 24 hours a
13-12 day, the department shall, within available appropriations, conduct
13-13 a comprehensive cost-benefit analysis and economic impact study
13-14 that includes families and licensed child-care providers.
13-15 (n) [(o)] Not later than the 60th day before the date the
13-16 board adopts a revision to the minimum standards for child-care
13-17 facilities, the department shall present the revision to the
13-18 appropriate legislative oversight committees that have jurisdiction
13-19 over child-care facilities for review and comment.
13-20 Sec. 42.043. RULES FOR IMMUNIZATIONS. (a) The department
13-21 shall make rules for the immunization of children in [admitted to]
13-22 facilities regulated under this chapter.
13-23 (b) The department shall require that each child at an
13-24 appropriate age have a test for tuberculosis and be immunized
13-25 against diphtheria, tetanus, poliomyelitis, mumps, rubella, and
13-26 rubeola and against any other communicable disease as recommended
13-27 by the Texas Department of Health. The immunization must be
14-1 effective on the date of first entry into the facility. However, a
14-2 child may be provisionally admitted if the required immunizations
14-3 have begun and are completed as rapidly as medically feasible.
14-4 (c) The Texas Department of Health shall make rules for the
14-5 provisional admission of children to facilities regulated under
14-6 this chapter and may modify or delete any of the immunizations
14-7 listed in Subsection (b) of this section or require additional
14-8 immunizations as a requirement for admission to a facility.
14-9 (d) No immunization may be required for admission to a
14-10 facility regulated under this chapter if a person applying for a
14-11 child's admission submits one of the following affidavits:
14-12 (1) an affidavit signed by a licensed physician
14-13 stating that the immunization would be injurious to the health and
14-14 well-being of the child or a member of the child's family or
14-15 household; or
14-16 (2) an affidavit signed by the child's parent or
14-17 guardian stating that the immunization conflicts with the tenets
14-18 and practices of a recognized religious organization of which the
14-19 applicant is an adherent or a member.
14-20 (e) Each regulated facility shall keep an individual
14-21 immunization record for each child admitted, and the records shall
14-22 be open for inspection by the department [division] at all
14-23 reasonable times.
14-24 (f) The Texas Department of Health shall provide the
14-25 immunizations required by this section to children in areas where
14-26 there is no local provision of these services.
14-27 Sec. 42.044. INSPECTIONS. (a) An authorized representative
15-1 of the department [division] may visit a facility regulated under
15-2 this chapter or a registered family home during operating hours to
15-3 investigate, inspect, and evaluate.
15-4 (b) The department [division] shall inspect all licensed or
15-5 certified facilities at least once a year and may inspect other
15-6 facilities or registered family homes as necessary. At least one
15-7 of the annual visits must be unannounced and all may be
15-8 unannounced.
15-9 (c) The department [division] must investigate a facility
15-10 regulated under this chapter or a registered family home when a
15-11 complaint is received. The [division] representative of the
15-12 department must notify the operator of a registered family home or
15-13 the [facility's] director or authorized representative of a
15-14 regulated facility when a complaint is being investigated and
15-15 report in writing the results of the investigation to the family
15-16 home's operator or to the regulated facility's director or the
15-17 director's authorized representative.
15-18 (d) The department [division] may call on political
15-19 subdivisions and governmental agencies for assistance within their
15-20 authorized fields.
15-21 Sec. 42.045. RECORDS. (a) A person who operates a licensed
15-22 or certified facility shall maintain individual child development
15-23 records, individual health records, statistical records, and
15-24 complete financial records.
15-25 (b) A person who provides adoption services under a license
15-26 to operate [operates] a child-placing agency shall furnish
15-27 information required by the department to determine whether
16-1 adoption related income and disbursements are reasonable,
16-2 appropriate, and in compliance with the department's minimum
16-3 standards [have an annual audit by a certified public accountant of
16-4 the facility's books. The audit must include a statement of
16-5 income and disbursements].
16-6 (c) If a child-placing agency terminates operation as a
16-7 child-placing agency, it shall, after giving notice to the
16-8 department, transfer its files and records concerning adopted
16-9 children, their biological families, and their adoptive families to
16-10 the department or to a facility licensed by the department to place
16-11 children for adoption.
16-12 Sec. 42.046. [LICENSE] APPLICATION FOR LICENSE OR
16-13 REGISTRATION. (a) An applicant for a license to operate a
16-14 child-care facility or child-placing agency or for a registration
16-15 to operate a family home shall submit to the department [division]
16-16 the appropriate fee prescribed by Section 42.054 of this code and a
16-17 completed application on a form provided by the department
16-18 [division].
16-19 (b) The department [division] shall supply the applicant the
16-20 application form and a copy of the appropriate minimum standards.
16-21 (c) After receiving an application, the department
16-22 [division] shall investigate the applicant and the plan of care for
16-23 children.
16-24 (d) The department [division] shall complete the
16-25 investigation and decide on an application within two months after
16-26 the date the department [division] receives a completed [an]
16-27 application.
17-1 Sec. 42.047. CONSULTATIONS. (a) The department shall offer
17-2 consultation to potential applicants, applicants, and license,
17-3 registration, and certification holders about meeting and
17-4 maintaining standards for licensing, registration, and
17-5 certification and achieving programs of excellence in child care.
17-6 (b) The department shall offer consultation to prospective
17-7 and actual users of facilities or homes.
17-8 [Sec. 42.048. ADVISORY OPINIONS. (a) The director of the
17-9 division may give an advisory opinion on whether or not a planned
17-10 facility or a planned change in an existing facility complies with
17-11 the division's rules and minimum standards.]
17-12 [(b) A written opinion authorized by Subsection (a) of this
17-13 section is binding on the division as a declaratory order if it is
17-14 signed by the division director and the division representative
17-15 administering this chapter in a division region, and if an
17-16 applicant or license holder has acted in reliance on the opinion.]
17-17 Sec. 42.048 [42.049]. LICENSING. (a) The department
17-18 [division] shall issue a license after determining that an
17-19 applicant has satisfied all requirements.
17-20 (b) When issuing a license, the department [division] may
17-21 impose restrictions on a facility, including but not limited to the
17-22 number of children to be served and the type of children to be
17-23 served.
17-24 (c) The department [division] may grant a variance of an
17-25 individual standard set forth in the applicable standards for good
17-26 and just cause.
17-27 (d) A license holder must display a license issued under
18-1 this chapter in a prominent place at the facility.
18-2 (e) A license issued under this chapter is not transferable
18-3 and applies only to the operator and facility location stated in
18-4 the license application. A change in location or ownership
18-5 automatically revokes a license.
18-6 (f) A license must be issued if the department [division]
18-7 determines that a facility meets all requirements. The evaluation
18-8 shall be based on one or more visits to the facility and a review
18-9 of required forms and records. A license is valid until revoked or
18-10 surrendered.
18-11 Sec. 42.049 [42.0491]. LIABILITY INSURANCE REQUIRED. (a) A
18-12 license holder shall maintain liability insurance coverage in the
18-13 amount of $300,000 for each occurrence of negligence. An insurance
18-14 policy or contract required under this section must cover injury to
18-15 a child that occurs while the child is on the premises of the
18-16 license holder or in the care of the license holder.
18-17 (b) A license holder shall file with the department
18-18 [division] a certificate or other evidence from an insurance
18-19 company showing that the license holder has an unexpired and
18-20 uncancelled insurance policy or contract that meets the
18-21 requirements of this section.
18-22 (c) Should the license holder for financial reasons or for
18-23 lack of availability of an underwriter willing to issue a policy be
18-24 unable to secure the insurance required under Subsection (a) or
18-25 should the policy limits be exhausted, the license holder shall
18-26 notify the parent or a person standing in parental relationship to
18-27 each child for whom the license holder provides care a written
19-1 notice that the liability coverage is not provided and there will
19-2 not be a ground for suspension or revocation of the license
19-3 holder's license under this chapter. The license holder shall also
19-4 notify the department that the coverage is not provided and provide
19-5 the reason for same. In no case shall the inability to secure
19-6 coverage serve to indemnify the license holder for damages due to
19-7 negligence.
19-8 (d) The insurance policy or contract shall be maintained at
19-9 all times in an amount as required by this section. Failure by a
19-10 license holder to renew the policy or contract or to maintain the
19-11 policy or contract in the required amount is a ground for
19-12 suspension or revocation of the license holder's license under this
19-13 chapter.
19-14 (e) This section does not apply to a group [or registered]
19-15 day-care [day care] home or registered family home.
19-16 Sec. 42.050. LICENSE RENEWAL. (a) A license holder may
19-17 apply for a new license in compliance with the requirements of this
19-18 chapter and the rules promulgated by the department [division].
19-19 (b) The application for a new license must be completed and
19-20 decided on by the department [division] before the expiration of
19-21 the license under which a facility is operating.
19-22 (c) The department [division] shall evaluate the application
19-23 for a new license to determine if all licensing requirements are
19-24 met. The evaluation may include a specified number of visits to
19-25 the facility and must include a review of all required forms and
19-26 records.
19-27 Sec. 42.051. PROVISIONAL LICENSE. (a) The department
20-1 [division] shall issue a provisional license when a facility's
20-2 plans meet the department's licensing requirements and one of the
20-3 following situations exists:
20-4 (1) the facility is not currently operating;
20-5 (2) the facility has relocated and has made changes in
20-6 the type of child-care service it provides; or
20-7 (3) there is a change in ownership of the facility
20-8 resulting in changes in policy and procedure or in the staff who
20-9 have direct contact with the children.
20-10 (b) A provisional license is valid for six months from the
20-11 date it is issued and may be renewed for an additional six months
20-12 [is not renewable].
20-13 Sec. 42.052. CERTIFICATION AND REGISTRATION. (a) A
20-14 state-operated child-care facility or child-placing agency must
20-15 receive certification of approval from the department [division].
20-16 The certification of approval remains valid until revoked or
20-17 surrendered.
20-18 (b) To be certified, a facility must comply with the
20-19 department's rules and standards and any provisions of this chapter
20-20 that apply to a licensed facility of the same category. The
20-21 operator of a certified facility must display the certification in
20-22 a prominent place at the facility.
20-23 (c) A family home that provides care for three or fewer
20-24 children, excluding [the caretaker's own] children who are related
20-25 to the caretaker, may register with the department [division]. A
20-26 family home that provides care for four or more children, excluding
20-27 [the caretaker's own] children who are related to the caretaker,
21-1 shall [must] register with the department [division]. A
21-2 registration remains valid until revoked or surrendered. The
21-3 operator of a registered home must display the registration in a
21-4 prominent place at the home.
21-5 (d) To remain registered with the department [division], a
21-6 family home must comply with the department's rules and standards
21-7 and any provision of this chapter that applies to a registered
21-8 family home.
21-9 (e) The certification requirements of this section do not
21-10 apply to a Texas Youth Commission [Council] facility, a Texas
21-11 Juvenile Probation Commission facility, or a facility providing
21-12 services solely for the Texas Youth Commission [Council].
21-13 (f) A family home may not place a public advertisement that
21-14 uses the title "registered family home" or any variation of the
21-15 phrase unless the home is registered [with the division] under this
21-16 chapter. Any public advertisement for a registered family home
21-17 which uses the title "registered family home" must contain a
21-18 provision in bold type stating: "THIS HOME IS REGISTERED WITH THE
21-19 DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES BUT IS NOT
21-20 LICENSED OR REGULARLY INSPECTED."
21-21 (g) The certification requirements of this section do not
21-22 apply to a juvenile detention facility certified under Section
21-23 51.12, Family Code, or Section 141.042(d).
21-24 Sec. 42.0521. DEPOSIT OF FEES. The fees authorized by this
21-25 chapter and received by the department shall be deposited in the
21-26 general revenue fund.
21-27 Sec. 42.053. AGENCY FOSTER HOMES AND AGENCY FOSTER GROUP
22-1 HOMES. (a) An agency foster home or agency foster group home is
22-2 considered part of the child-placing agency that operates the
22-3 agency foster home or agency foster group home for purposes of
22-4 licensing.
22-5 (b) The operator of a licensed agency shall display a copy
22-6 of the license in a prominent place in the agency foster home or
22-7 agency foster group home used by the agency.
22-8 (c) An agency foster home or agency foster group home shall
22-9 comply with all provisions of this chapter and all department rules
22-10 and standards that apply to a child-care facility caring for a
22-11 similar number of children for a similar number of hours each day.
22-12 (d) The department [division] shall revoke or suspend the
22-13 license of a child-placing agency if an agency foster home or
22-14 agency foster group home operated by the licensed agency fails to
22-15 comply with Subsection (c) of this section.
22-16 [Sec. 42.054. FEES. (a) The division shall charge a
22-17 nonrefundable application fee of $25 to an applicant for an initial
22-18 license to operate a child-care facility or child-placing agency.]
22-19 [(b) The division shall charge each child-care facility a
22-20 fee of $25 for a provisional license. The division shall charge
22-21 each child-placing agency a fee of $50 for a provisional license.]
22-22 [(c) The division shall charge each child-care facility an
22-23 annual license fee in the amount of $40 for each child-care
22-24 facility plus $1 for each child the child-care facility is
22-25 permitted to serve, except that the total fee may not exceed $150.
22-26 The fee is due on the date on which the division issues the
22-27 child-care facility's license and on the anniversary of that date.]
23-1 [(d) The division shall charge each child-placing agency an
23-2 annual license fee of $100. The fee is due on the date on which
23-3 the division issues the child-placing agency's license and on the
23-4 anniversary of that date.]
23-5 [(e) The division shall charge each registered family home
23-6 an annual registration fee of $15. The fee is due on the date on
23-7 which the division registers the home and on the anniversary of
23-8 that date.]
23-9 [(f) If a facility, agency, or home fails to pay the annual
23-10 license or registration fee when due, the license or registration
23-11 is suspended until the fee is paid.]
23-12 [(g) The provisions of Subsections (b) through (f) do not
23-13 apply to:]
23-14 [(1) licensed foster family homes and licensed foster
23-15 family group homes;]
23-16 [(2) nonprofit facilities regulated under this chapter
23-17 that provided 24-hour care for children in the managing
23-18 conservatorship of the department during the 12-month period
23-19 immediately prior to the anniversary date of the facility's
23-20 license.]
23-21 Sec. 42.054. FEES. (a) The department [division] shall
23-22 charge an applicant a nonrefundable application fee of $35 [to an
23-23 applicant] for an initial license to operate a child-care facility
23-24 or a child-placing agency.
23-25 (b) The department [division] shall charge each child-care
23-26 facility a fee of $35 for a provisional license. The department
23-27 [division] shall charge each child-placing agency a fee of $50 for
24-1 a provisional license.
24-2 (c) The department [division] shall charge each licensed
24-3 child-care facility an annual license fee in the amount of $35 [for
24-4 each child-care facility] plus $1 for each child the child-care
24-5 facility is permitted to serve. The fee is due on the date on
24-6 which the department [division] issues the child-care facility's
24-7 initial license and on the anniversary of that date.
24-8 (d) The department [division] shall charge each licensed
24-9 child-placing agency an annual license fee of $100. The fee is due
24-10 on the date on which the department [division] issues the
24-11 child-placing agency's initial license and on the anniversary of
24-12 that date.
24-13 (e) The department [division] shall charge each family home
24-14 that is registered with the department [division] an annual
24-15 registration fee of $35 to cover the department's cost in
24-16 regulating family homes. The fee is due on the date on which the
24-17 department initially [division] registers the home and on the
24-18 anniversary of that date.
24-19 (f) If a facility, agency, or home fails to pay the annual
24-20 [license or registration] fee when due, the license or
24-21 registration, as appropriate, is suspended until the fee is paid.
24-22 (g) The provisions of Subsections (b) through (f) of this
24-23 section do not apply to:
24-24 (1) licensed foster [family] homes and licensed foster
24-25 [family] group homes;
24-26 (2) nonprofit facilities regulated under this chapter
24-27 that provided 24-hour care for children in the managing
25-1 conservatorship of the department during the 12-month period
25-2 immediately preceding the anniversary date of the facility's
25-3 license; or
25-4 (3) facilities operated by a nonprofit corporation or
25-5 foundation that provides 24-hour residential care and does not
25-6 charge for the care provided.
25-7 Sec. 42.055. [USE OF FEES. The child-care training fund is
25-8 established as a special fund in the state treasury, and the
25-9 division shall deposit fees received under this subchapter to the
25-10 credit of that fund. The child-care training fund may be used only
25-11 to provide programs of parent education and caretaker training
25-12 designed to ensure the health, safety, and well-being of children.
25-13 Up to three percent of the amount collected as fees under the
25-14 authority of this chapter may be used by the department for actual
25-15 costs of collecting the fees and administering the fund.]
25-16 [Sec. 42.056.] SIGN POSTING. (a) Each child-care [child
25-17 care] facility shall post in a location that is conspicuous to all
25-18 employees and customers a sign that includes:
25-19 (1) a description of the provisions of the [Chapter
25-20 34,] Family Code[,] relating to the duty to report child abuse or
25-21 neglect; and
25-22 (2) a description of the penalties for violating the
25-23 reporting provisions of the [Chapter 34,] Family Code.
25-24 (b) The department by rule shall determine the design, size,
25-25 and wording of the sign.
25-26 (c) The department shall provide the sign to each child-care
25-27 [child care] facility without charge.
26-1 (d) A person who operates a child-care [child care] facility
26-2 commits an offense if the department provides a sign to the
26-3 facility as provided by this section and the person intentionally
26-4 fails to display the sign in the facility as prescribed by this
26-5 section. An offense under this subsection is a Class C
26-6 misdemeanor.
26-7 Sec. 42.056. REQUIRED BACKGROUND AND CRIMINAL HISTORY
26-8 CHECKS. (a) In accordance with rules adopted by the department,
26-9 the director, owner, or operator of a child-care facility or family
26-10 home shall, when applying to operate a child-care facility or when
26-11 registering a family home and at least once during each 24 months
26-12 after receiving a license, registration, or certification of
26-13 approval, submit to the department for use in conducting background
26-14 and criminal history checks:
26-15 (1) the name of the director, owner, and operator of
26-16 the facility or home, and the name of each person employed at the
26-17 facility or home; and
26-18 (2) the name of each person 14 years of age or older
26-19 who will regularly or frequently be staying or working at the
26-20 facility or home while children are being provided care.
26-21 (b) The department shall conduct background and criminal
26-22 history checks using:
26-23 (1) the information provided under Subsection (a);
26-24 (2) the information made available by the Department
26-25 of Public Safety under Section 411.114, Government Code, or by the
26-26 Federal Bureau of Investigation or other criminal justice agency
26-27 under Section 411.087, Government Code; and
27-1 (3) the department's records of reported abuse and
27-2 neglect.
27-3 (c) The department by rule shall require a child-care
27-4 facility or family home to pay to the department a fee in an amount
27-5 not to exceed the administrative costs the department incurs in
27-6 conducting a background and criminal history check under this
27-7 section.
27-8 SUBCHAPTER D. REMEDIES
27-9 Sec. 42.071. [LICENSE] SUSPENSION, EVALUATION, OR PROBATION
27-10 OF LICENSE OR REGISTRATION. (a) The department [division] may
27-11 suspend the license of a facility or the registration of a family
27-12 home that has temporarily ceased operation but has definite plans
27-13 for starting operations again within the time limits of the issued
27-14 license or registration.
27-15 (b) The department [division] may suspend a facility's
27-16 license or a family home's registration for a definite period
27-17 rather than deny or revoke the license or registration if the
27-18 department [division] finds repeated noncompliance with standards
27-19 that do not endanger the health and safety of children. To qualify
27-20 for license or registration suspension under this subsection, a
27-21 facility or family home must suspend its operations and show that
27-22 standards can be met within the suspension period.
27-23 (c) If the department [division] finds a facility or family
27-24 home is in repeated noncompliance with standards that do not
27-25 endanger the health and safety of children, the department
27-26 [division] may schedule the facility or family home for evaluation
27-27 or probation rather than suspend or revoke the facility's license
28-1 or the family home's registration. The department [division] shall
28-2 provide notice to the facility or family home of the evaluation or
28-3 probation and of the items of noncompliance not later than the 10th
28-4 day before the evaluation or probation period begins. The
28-5 department [division] shall designate a period of not less than 30
28-6 days during which the facility or family home will remain under
28-7 evaluation. During the evaluation or probation period, the
28-8 facility or family home must correct the items that were in
28-9 noncompliance and report the corrections to the department
28-10 [division] for approval.
28-11 (d) The department [division] shall revoke the license of a
28-12 facility or the registration of a family home that does not comply
28-13 with standards at the end of a license or registration suspension.
28-14 (e) The department [division] may suspend or revoke the
28-15 license of a facility or the registration of a family home that
28-16 does not correct items that were in noncompliance or that does not
28-17 comply with required standards within the applicable evaluation or
28-18 probation period.
28-19 Sec. 42.072. LICENSE OR REGISTRATION DENIAL, SUSPENSION, OR
28-20 REVOCATION. (a) The department [division] may suspend, deny, [or]
28-21 revoke, or refuse to renew the license, registration, or
28-22 certification of approval of a facility or family home that does
28-23 not comply with the requirements of this chapter, the standards and
28-24 rules of the department, or the specific terms of the license,
28-25 registration, or certification. The department may revoke the
28-26 probation of a person whose license or registration is suspended if
28-27 the person violates a term of the conditions of probation.
29-1 (b) If the department proposes to take an action under
29-2 Subsection (a), the person is entitled to a hearing conducted by
29-3 the State Office of Administrative Hearings. Proceedings for a
29-4 disciplinary action are governed by the administrative procedure
29-5 law, Chapter 2001, Government Code. Rules of practice adopted by
29-6 the board under Section 2001.004, Government Code, applicable to
29-7 the proceedings for a disciplinary action may not conflict with
29-8 rules adopted by the State Office of Administrative Hearings.
29-9 (c) [The division shall notify the person operating or
29-10 proposing to operate a facility of the reasons for the denial or
29-11 revocation and of the person's right to appeal the decision within
29-12 30 days after receiving the notice.]
29-13 [(c) A person who wishes to appeal a license denial or
29-14 revocation shall notify the director by certified mail within 30
29-15 days after receiving the notice required in Subsection (b) of this
29-16 section. The person shall send a copy of the notice of appeal to
29-17 the assigned division representative.]
29-18 [(d) The denial or revocation of a license or certification
29-19 and the appeal from that action are governed by the procedure for a
29-20 contested case hearing under Chapter 2001, Government Code.]
29-21 [(e) A person whose license has been denied or revoked may
29-22 challenge the decision by filing a suit in a district court of
29-23 Travis County or the county in which the person's facility is
29-24 located within 30 days after receiving the decision. The trial
29-25 shall be de novo.]
29-26 [(f) Records of the hearing shall be kept for two years
29-27 after a decision is rendered. On request, and at the person's own
30-1 expense, the division shall supply a copy of the verbatim
30-2 transcript of the hearing to a person appealing a license denial or
30-3 revocation in district court.]
30-4 [(g) A person may continue to operate a facility during an
30-5 appeal of a license denial or revocation unless the division has
30-6 obtained injunctive relief under Section 42.074 or civil penalties
30-7 under Section 42.075 or the facility has been closed under Section
30-8 42.073.]
30-9 [(h)] A person whose license, registration, or certification
30-10 is revoked may not apply for any license, registration, or
30-11 certification under this chapter before the second anniversary of
30-12 the date on which the revocation takes effect by department or
30-13 court order.
30-14 (d) The department by rule may provide for denial of an
30-15 application or renewal for a licensed facility or for registering a
30-16 family home or may revoke a facility's license or a family home's
30-17 registration based on the results of a background or criminal
30-18 history check.
30-19 Sec. 42.073. EMERGENCY SUSPENSION AND CLOSURE OF A FACILITY
30-20 OR FAMILY HOME. (a) The department [division] shall suspend a
30-21 facility's license or a family home's registration and[,] order the
30-22 immediate closing of the facility or family home[, and place the
30-23 children attending or residing in the facility elsewhere] if:
30-24 (1) the department [division] finds the facility or
30-25 family home is operating in violation of the applicable standards
30-26 prescribed by this chapter; and
30-27 (2) the violation creates an immediate threat to the
31-1 health and safety of the children attending or residing in the
31-2 facility or family home.
31-3 (b) An order suspending a license or registration and an
31-4 order closing a facility or family home under this section is
31-5 immediately effective on the date on which the [license] holder of
31-6 the license or registration receives written notice or on a later
31-7 date specified in the order.
31-8 (c) An order is valid for 10 days after the effective date
31-9 of the order.
31-10 (d) The suspension of a license or registration and the
31-11 closure of a [the] facility or family home and the appeal from that
31-12 action are governed by the procedures for a contested case hearing
31-13 under Chapter 2001, Government Code.
31-14 Sec. 42.074. INJUNCTIVE RELIEF. (a) When it appears that a
31-15 person has violated, is violating, or is threatening to violate the
31-16 licensing, certification, or registration requirements of this
31-17 chapter or the department's licensing, certification, or
31-18 registration rules and standards, the department [division] may
31-19 file a suit in a district court in Travis County or in the county
31-20 where the facility or family home is located for assessment and
31-21 recovery of civil penalties under Section 42.075 [of this code],
31-22 for injunctive relief, including a temporary restraining order, or
31-23 for both injunctive relief and civil penalties.
31-24 (b) The district court shall grant the injunctive relief the
31-25 facts may warrant.
31-26 (c) At the department's [division's] request, the attorney
31-27 general or the county or district attorney of the county in which
32-1 the facility or family home is located shall conduct a suit in the
32-2 name of the State of Texas for injunctive relief, to recover the
32-3 civil penalty, or for both injunctive relief and civil penalties as
32-4 authorized by Subsection (a) [of this section].
32-5 (d) Injunctive relief provided by this section is in
32-6 addition to any other action, proceeding, or remedy authorized by
32-7 law. It is not necessary to allege or prove in an action filed
32-8 under this section that an adequate remedy at law does not exist or
32-9 that substantial or irreparable harm would result from the
32-10 continued violation.
32-11 (e) The department is not required to give an appeal bond in
32-12 an action arising under this section.
32-13 Sec. 42.075. CIVIL PENALTY. (a) A person is subject to a
32-14 civil penalty of not less than $50 nor more than $100 for each day
32-15 of violation and for each act of violation if the person:
32-16 (1) threatens serious harm to a child in a facility or
32-17 family home by violating a provision of this chapter or a
32-18 department rule or standard;
32-19 (2) violates a provision of this chapter or a
32-20 department rule or standard three or more times within a 12-month
32-21 period; or
32-22 (3) places a public advertisement for an unlicensed
32-23 facility or unregistered family home.
32-24 (b) The civil penalty authorized by this section is
32-25 cumulative and in addition to the criminal penalties and injunctive
32-26 relief provided by this chapter.
32-27 Sec. 42.076. CRIMINAL PENALTIES. (a) A person who operates
33-1 a child-care facility or child-placing agency without a license
33-2 commits a Class B misdemeanor.
33-3 (b) A person who operates a family home without a
33-4 registration commits a Class B misdemeanor.
33-5 (c) A person who places a public advertisement for an
33-6 unlicensed facility or an unregistered family home commits a Class
33-7 C misdemeanor.
33-8 [(c) A person who places an advertisement for a registered
33-9 family home in violation of Section 42.052(f) of this code commits
33-10 a Class C misdemeanor.]
33-11 (d) It is not an offense under this section if a
33-12 professional provides legal or medical services to:
33-13 (1) a parent who identifies the prospective adoptive
33-14 parent and places the child for adoption without the assistance of
33-15 the professional; or
33-16 (2) a prospective adoptive parent who identifies a
33-17 parent and receives placement of a child for adoption without
33-18 assistance of the professional.
33-19 Sec. 42.077. NOTICE OF ACTION AGAINST FACILITY OR FAMILY
33-20 HOME. (a) If the department revokes or suspends a facility's
33-21 license or a family home's registration, the department shall
33-22 publish notice of this action in a newspaper of general circulation
33-23 in the county in which the facility or family home is located. The
33-24 newspaper shall place the notice in the section in which
33-25 advertisements for day-care services are normally published.
33-26 (b) If a person who operates a facility or family home that
33-27 has had its license or registration revoked or suspended later
34-1 applies for a new license or registration to operate the same
34-2 facility or family home, the department shall charge the person an
34-3 application fee in an amount necessary to reimburse the department
34-4 for the cost of the notice relating to that facility or family
34-5 home.
34-6 (c) The department shall pay for publication of the notice
34-7 from funds appropriated to the department for licensing and
34-8 regulating child-care facilities and for registering and regulating
34-9 family homes and from appeal and application fees collected under
34-10 Subsection (b) [of this section] and appropriated to the
34-11 department.
34-12 (d) A facility or family home that has its license or
34-13 registration revoked or suspended shall mail notification of this
34-14 action by certified mail to the parents or guardian of the child
34-15 served by the facility or family home. The facility or family home
34-16 shall mail the notification within five days of the effective date
34-17 of the [license] revocation or suspension of the license or
34-18 registration.
34-19 SECTION 8. Section 43.012, Human Resources Code, is amended
34-20 to read as follows:
34-21 Sec. 43.012. PENALTY. A person who serves as a child-care
34-22 administrator without the license required by this chapter commits
34-23 a Class C misdemeanor [and may be fined not less than $50 nor more
34-24 than $100].
34-25 SECTION 9. (a) This Act takes effect September 1, 1997.
34-26 (b) The change in law made by this Act applies only to an
34-27 offense committed on or after the effective date of this Act. For
35-1 purposes of this subsection, an offense is committed before the
35-2 effective date of this Act if any element of the offense occurs
35-3 before that date. An offense committed before the effective date
35-4 of this Act is covered by the law in effect when the offense was
35-5 committed, and the former law is continued in effect for that
35-6 purpose.
35-7 (c) The change in law made by this Act applies only to a
35-8 license or registration fee due to be paid on or after the
35-9 effective date of this Act. A license or registration fee due to
35-10 be paid before the effective date of this Act is governed by the
35-11 law in effect immediately before the effective date of this Act,
35-12 and that law is continued in effect for that purpose.
35-13 SECTION 10. The importance of this legislation and the
35-14 crowded condition of the calendars in both houses create an
35-15 emergency and an imperative public necessity that the
35-16 constitutional rule requiring bills to be read on three several
35-17 days in each house be suspended, and this rule is hereby suspended.